Thomas K. Downs and Laura H. Downs, Appellants-Defendants,
Stephen S. Radentz and Magdalena B. Czader, Appellees-Plaintiffs.
from the Boone Superior Court The Honorable Matthew C.
Kincaid, Judge Trial Court Cause No. 06D01-1711-PL-1443.
Attorneys for Appellants Daniel L. Taylor J. Kent Minnette
Taylor, Chadd, Minnette, Schneider & Clutter, P.C.
Attorneys for Appellees E. Scott Treadway Raymond J.
Biederman Mattingly Burke Cohen & Biederman LLP
of the Case
Thomas and Laura Downs (collectively "Sellers")
appeal the trial court's judgment in favor of Stephen
Radentz and Magdalena Czader (collectively
"Buyers") on Buyers' complaint seeking specific
performance of the parties' agreement for the sale of
real estate. Sellers present two issues for our review:
1. Whether the trial court erred when it applied the parol
evidence rule and excluded certain evidence at trial.
2. Whether the trial court's finding that the parties
entered into a valid and enforceable settlement agreement is
Buyers cross appeal and ask that we award them appellate
We affirm and remand with instructions.
and Procedural History
On September 5, 2017, Sellers listed for sale their residence
located on ten acres in Zionsville ("the
property"). On September 18, Buyers made an offer to
purchase the property. After the parties proposed offers and
counter-offers, they agreed on a purchase price of $1.2
million and executed a purchase agreement. However, following
disagreements regarding inspections and appraisals, on
November 27, Buyers filed with the trial court a complaint
for specific performance. Over the course of the next several
months, the parties negotiated a settlement agreement, which
Sellers executed on August 12, 2018.
The settlement agreement incorporated by reference the
parties' purchase agreement, which required in relevant
part that Sellers provide a survey "certified as of a
current date" and that was "reasonably satisfactory
to Buyer." Appellees' App. Vol. 2 at 45. On August
16, before Buyers had executed the settlement agreement,
Sellers' attorney sent Buyers' attorney a letter
stating in relevant part as follows: "Pursuant to
the Settlement Agreement, please find enclosed the
original Anderson and Associates survey of the [property from
1996] along with a copy of the original title policy."
Defendants' Ex. C (emphasis added).
In response to that letter, Buyers informed Sellers that the
1996 survey was not acceptable and did not comply with the
terms of the purchase agreement. On August 20, after Sellers
had refused to provide a different survey, Buyers'
attorney sent an email to Sellers' attorney's office
My client[s] are precariously close to walking away from the
settlement. We expect a current survey of the property. The
documents provided were decades old and of little value to us
or the title company.
Please advise by the close of business today whether we can
expect a current survey. Otherwise, let's move forward
with the litigation.
Ex. D. In particular, Buyers requested a current
"ALTA" survey of the property. Tr. at 98.
[¶7] Despite not having received a
current survey of the property, Buyers executed the
settlement agreement on August 30. Still, Sellers refused to
permit Buyers access to the property to perform inspections
or appraisals. On September 30, Buyers filed with the trial
court a motion to enforce the settlement agreement. Following
an evidentiary hearing, the trial court entered judgment for
Buyers and found and concluded as follows:
3. [Buyers] substantially performed or offered to perform
their contract obligations in relation to the Purchase
Agreement. The undisputed testimony from [Radentz], Barbara
Ward, broker for [Buyers], and Robbin Edwards, broker for
[Sellers], was that the [Buyers] fulfilled all conditions
precedent under the Purchase Agreement.
4. [Sellers] breached the Purchase Agreement by failing to
satisfy the terms of the same.
11. [Buyers] and [Sellers] entered into a written Settlement
and Release Agreement, dated August 30, 2018 (the
"Settlement Agreement"). . . .
12. The Settlement Agreement was executed by [Sellers] on
August 12, 2018, and executed by [Buyers] on August 30, 2018.
13. [Sellers] each testified, and the Court finds, that
[Sellers] knowingly and voluntarily executed the Settlement
14. [Sellers] each testified, and the Court finds, that
[Sellers] were represented by legal counsel during the
negotiation and preparation of the Settlement Agreement.
15. [Sellers] each testified, and the Court finds, that
[Sellers] intended to be bound by the terms and conditions of